Shri Khireswar Saikia and Another vs The State of Assam

B.L. Hansaria, J.—The two Petitioners wore within their teens when they committed rape on khireswari. This had happened more than 10 years before. The learned trial Court on being satisfied about the involvement of the two Petitioners in the crime found them guilty under Sections 376/34 IPC and sentenced each of them imprisonment for 2 1/2 years and to pay a fine of Rs. 300/- each, in default to suffer imprisonment for another six months each. On appeal being preferred the same has come the be dismissed at the hand of the learned Sessions judge, Lakhimpur, Hence this revision.

A perusal of the two judgments shows that the learned Courts below had applied their minds to the entire materials on record and found the Petitioners guilty under the aforesaid section of law. Sitting in revision it is not open to this Court to re-appreciate the evidence as the findings arrived at by the courts below cannot be said to be in any way unreasonable or untenable. I have therefore heard Shri Choudhury appearing for the Petitioners, as well as Shri Goswami appearing as Additional Public Prosecutor on the question of sentence.

Before the question of sentence is gone into it may be pointed out that I heard the learned Counsel of both the sides on the question of giving benefit to the Petitioner of Section 360 Code of Criminal Procedure or under the provisions of the Probation of Offenders Act. Section 376 IPC being punishable upto imprisonment for life (this was also the position when the offence was committed) the benefit of the aforesaid sections of law cannot be made available to the two Petitioners. This being the position it has to be decided as to what would be the sentence to be awarded in the case of the present nature. Shri Choudhury has invited my attention to two decisions of the Apex Court and one decision of the Rajasthan High Court. In Phul Singh Vs. State of Haryana, where the accused was aged 22 years and not a habitual offender the sentence u/s 376 was reduced from four years to two years. In Kakoo Vs. The State of Himachal Pradesh, the sentence of four years awarded to the Appellant who was hardly 13 years old at the time of the occurrence and committed rape on a child of 2 years was reduced to R.I. for one year with a fine of Rs. 2,000/- The Rajasthan case is that of Sheoji Ram v. State of Rajasthan 1981 Cri.L.J. 1311 wherein the offender was aged about 15 years committing rape on a girl aged about 5 years was sentenced to two years simple imprisonment.

In the present case Khireswari, the victim girl was not in her tender age when rape was committed on her. She was aged about 18/19 years. This is a mitigating factor in so far as the sentence is concerned inasmuch as in the two cases out of the three mentioned above the offence was committed on the girls of very tender age of 2 and 6 years. Of course, the offenders were aged about 13 and 15 years in two of the aforesaid three cases. Even then the Apex Court sentenced the offender to an imprisonment of one year and the Rajasthan High Court awarded punishment of two years.

Keeping in view the aforesaid pronouncements, the aforesaid mitigating factor and the age of two offenders at the relevant time a sentence of imprisonment for 9 months would meet the ends of justice according to me; and so I reduce the sentence to 9 months.

The petition is therefore accepted to the extent indicated above.